1.1. The following words, when capitalized in these General Terms and Conditions of Sale, shall have the meaning hereafter set out:
Affiliate: company or other legal entity of which C.O.B.O. SpA owns or controls, directly or indirectly, at least 50% of equity, shares or other instruments conferring voting rights.
GTCS: these General Terms and Conditions of Sale.
Customer: any company or other legal entity that purchases Products and/or Services from COBO and/or its Affiliates.
COBO: C.O.B.O. SpA, a company incorporated under the laws of Italy, having its registered office at Leno (BS), via Tito Speri n. 10, Italian tax id. no. 08976960156, VAT code IT01931530982 including every Affiliate of C.O.B.O. SpA Group of companies that supplies to Customer Products or Services.
Intellectual Property Rights: all industrial and intellectual property rights owned by or licensed to COBO, including but not limited to rights pertaining to patents, models, designs rights, utility models, Trade Marks, know-how, technical specifications, data, registered or not, including all filings or registration of any such rights and any other similar right or protective measure with the same purposes.
Confidential Information: each and every information disclosed by COBO to Customer in any form (written, oral, electronic, etc., including any copies and any derivative information thereof), which is identified as “CONFIDENTIAL”, “PROPRIETARY” or equivalent notice at the time of disclosure, or which is of apparent confidential nature; Confidential Information may include, inter alia, trade secrets, systems, know-how, drawings, design, products, processes, inventions, computer software programs, marketing techniques, sales techniques, purchasing techniques; financial statements, business interests, initiatives, objectives, plans, or strategies; lists of clients, suppliers, lenders, underwriters, vendors, consultants, independent contractors, attorneys, accountants or employees; other specific information with respect to the purposes set out above, etc..
Trade marks: all trademarks, logos, brand names, distinctive features, etc., owned by or licensed to COBO.
Order: each Customer’s proposal to purchase Products and/or Services made by Customer via the Online System of COBO in accordance with these GTCS. The Order shall be for an amount (exclusive of V.A.T. and other expenses) comprised between one hundred and fifty euro (EUR 150.00) and ten thousand euro (EUR 10,000.00)
Rush Order: Order for which the Customer chooses the “COBO RUSH delivery” option.
Order Receipt Acknowledgement: document issued by COBO in accordance with these GTCS that states that Customer’s Order has been received and shall be dealt with in accordance with COBO’s procedures.
Order Acceptance: document issued by COBO stating that Customer’s Order has been accepted.
Parties: COBO and the Customer.
Products: goods manufactured, assembled or otherwise supplied by COBO.
Services: the services, activities and works (including development activities, manufacturing and/or rental of production moulds, etc.) provided by COBO to Customer, whether or not in connection with a sale of Products.
Online Telematics System: COBO’s telematics system used to manage electronic commerce transactions.
2. Scope of application
2.1. Unless expressly specified by COBO in writing, these GTCS shall apply to all sales of Products and Services made by COBO through the Online System.
2.2. By sending an Order or a Rush Order to COBO through the Online System, Customer unconditionally accepts this sub Section and these GTCS in their entirety.
2.3. Unless otherwise provided in a specific agreement in writing, signed by both parties, the following are hereby expressly excluded and will not apply in any case:
- choice of law provisions requesting application of laws other than those specified in these GTCS;
- the 1980 Vienna Convention on the international sale of goods;
- Customer’s general or special terms and conditions, whether or not they are mentioned in or made part of the Order or other forms of the Customer.
2.4. Any Customer’s contractual terms and conditions will never be deemed applicable by implied or tacit acceptance and they will in all cases be excluded.
2.5. COBO reserves the right to amend these GTCS at any time. COBO will make the new GTCS available to Customer on the Online System.
3. Ordering procedure
3.1. COBO will provide to Customer the URL link and credentials to access COBO’s Online System.
3.2. The Customer shall log into COBO’s Online System with the credentials provided by COBO and shall make specific Orders and/or Rush Orders on the Online System picking Products (by their description or Product Code) and the requested quantity.
3.3. A Rush Order can be made by the Customer by selecting the “COBO RUSH delivery” option only upon occurrence of the following conditions:
- Number of items of material between 1 and 5;
- Availability in the warehouse of the material included in the Order.
3.4. Following receipt of an Order, COBO will send to the Customer by e-mail an automatic notice of Order Receipt Acknowledgement, confirming that the Order has been received and it will be processed in accordance with company procedures for order management and with these GTCS. The Order Receipt Acknowledgement does not imply acceptance of any terms and conditions attached by Customer to the Order, nor a commitment to deliver in accordance with quantities, prices and delivery dates set out in the Order.
3.5. The quantities and delivery dates set out in the Order are deemed as Customer’s requests, not binding for COBO.
3.6. For Rush Orders, COBO will prepare the shipment of the Rush Order within 24 working hours from receipt of the Rush Order.
3.7. COBO reserves the right to accept or reject in full or in part each Order of Customer.
3.8. COBO may subsequently send an Order Acceptance to Customer, confirming the commitment to deliver in accordance with quantities, prices and delivery dates set out in the Order Acceptance.
3.9. Delivery by COBO within the requested timeframe shall be deemed as Order Acceptance.
3.10. Customer may request to withdraw or change the Order making contact with COBO’s customer service by phone no. +39 0309045800 or by e-mail writing to firstname.lastname@example.org. If the request of change or cancellation of Order by the Customer is received by COBO more than five (5) working days after the receipt of the Order by COBO. After said period, any Order cancellation or change shall be subject to prior approval by COBO which reserves the right to request payment off costs depending upon the lead-time for procurement of the ordered Products or Services.
No Order may be cancelled or changed after issuance of an Order Acceptance by COBO, unless with the prior written consent of COBO.
Rush Orders cannot be withdrawn, cancelled or changed by the Customer.
4.1. Unless otherwise specifically agreed in writing by COBO, COBO will deliver the Products Ex Works COBO’s premises (EXW INCOTERMS 2020 or further editions).
4.2. Unless otherwise agreed by the Parties in writing, carriage shall always take place at Customer’s care, cost and risk. If requested by Customer and subject to prior written agreement by the Parties, COBO may arrange carriage of Products, always at Customer’s sole cost and risk. In such case, COBO shall choose the transportation means deemed appropriate, unless Customer has provided specific instructions. COBO’s liability will in no event exceed the amounts paid by the entrusted carrier.
4.3. All delivery terms are deemed as estimates, unless expressly confirmed in writing by COBO in a formal Order Acceptance or other instrument in which COBO sets out binding delivery dates. In no event article 1457 of the Italian civil code shall apply.
COBO will use reasonable endeavors to provide reasonably accurate estimates of the delivery dates and to provide Customer with prompt updates on any changes in the same. Customer understands and agrees that the delivery dates may be subject to reasonable variations, without any right for Customer to claim damages or indemnification.
The delivery dates set out or confirmed by COBO shall be exclusive of any transportation time, even when COBO arranges carriage in accordance with sub-Section 4.2 above.
4.4. COBO can make partial deliveries of the ordered quantities and deliver earlier than on the estimated delivery date. providing prior notice to Customer.
4.5. COBO will not be liable for delays or failures in delivery due to acts of third parties or events outside COBO’s control, including but not limited to: (a) Customer’s refusal or unavailability to accept delivery of Products or Services; (b) delays, failures or inaccuracies by Customer in providing data and information needed for the manufacture and delivery of Products or for the performance of Services; (c) shortages in the procurement of raw materials or components; (d) reduction of manufacturing capacity by suppliers of COBO; (e) force majeure events (as defined in sub Section 9.4), strikes, orders issued or measures taken by public authorities, etc.; (f) delays by one or more carriers.
4.6. Subject to the provisions concerning Intellectual Property Rights, transfer of title (and risk) of the Products and other materials supplied by COBO to Customer shall take place upon delivery.
4.7. Customer undertakes to inspect the Products upon delivery and to verify compliance of the delivered Products with the quantities and types listed in the Order, as well as the absence of apparent damages.
In case of any discrepancies or apparent damages, Customer shall immediately notify them to the carrier and will send COBO, not later than five (5) days thereafter, a written notice detailing the discrepancies or damages found.
4.8. Failure to notify any discrepancies or damages in accordance with sub-Section 4.7 above shall be deemed as Customer’s acceptance of the Products, subject to the warranty provisions for non-apparent defects as set forth in these GTCS.
5. Prices, invoicing, payments
5.1. Prices of Products and Services are the prices for online Orders, in COBO’s price list as published in COBO’s Online System at the time the Order is placed. For Rush Orders, COBO shall charge a Rush Order management fee in addition to the costs of shipment, which shall be shown by COBO’s Online System at the time of placing the Rush Order.
5.2. COBO reserves the right to change at any time and at its own exclusive discretion the price lists for Products and Services. Any such changes shall apply to Orders issued after that the new price lists have been communicated to Customer or made available on COBO’s Online System.
5.3. All prices are intended Ex Works COBO’s premises (EXW INCOTERMS 2020 or further editions) and are exclusive of V.A.T. and of any other tax, duty, withholding, cost, levy, etc., which shall be borne by Customer with the sole exception of taxes based upon COBO’s income.
5.4. The prices of Products include standard COBO packaging.
5.5. The prices of Products and Services are calculated taking into account the exchange rates (and in particular the EUR/USD exchange rate) at the time of issuance of the Order by Customer. In the event of material changes in the exchange rate to the detriment of EURO, COBO reserves the right to adjust the prices at the time of invoicing.
5.6. Unless otherwise agreed by the Parties in writing, COBO will invoice Customer as follows:
- for Products, upon delivery (and in case of split deliveries upon each delivery for the relevant delivered Products); in the event of refusal or unavailability of Customer to accept delivery, COBO shall invoice Customer upon the first attempt to deliver;
- for spot Services or Services requiring one or more spot deliveries of materials or data, upon performance of the Service or delivery of the materials or data;
- for ongoing, periodical or long-term Services, at the end of each calendar month (for Services provided in the relevant calendar month) or of such other period of time as agreed by the Parties in writing.
5.7. Customers with a registered office or fiscal organization in Italy must communicate to COBO in advance of issuance of an Order, the identification code («codice destinatario») needed for electronic invoicing.
5.8. Customer shall pay all invoices in EURO, unless otherwise stated on the invoice, by bank transfer with costs borne by Customer, not later than thirty (30) days after the date of invoice, unless otherwise instructed in the invoice and/or unless otherwise agreed by the Parties in writing.
5.9. COBO may require other means of payment, as well as payment in advance by credit and/or debit cards.
5.10. All delays in payment shall automatically produce interests at the rate determined in accordance with Italian legislative decree no. 231/2002.
In addition, COBO shall be entitled to (a) suspend all deliveries of Products and/or Services, and (b) reject or suspend new Orders, until full payment of price and interests has been made, provided that COBO shall gave the right to terminate the contract for Customer’s breach and to claim additional damages.
5.11. In no event any claim, dispute, warranty request, etc., will entitle Customer to refuse, suspend or delay payment.
6.1. Subject to Customer’s obligation to inspect the Products upon delivery as per sub-Section 4.7 above, COBO warrants that the Products will comply with the agreed technical specifications and be free from defects in materials and workmanship for a period of twelve (12) months from the delivery date, with a maximum of fifteen (15) months from the date of manufacturing of the relevant production lot.
6.2. Customer undertakes to notify COBO in writing, via e-mail sent to email@example.com not later than eight (8) days after its discovery, any defect or non-compliance occurred within the warranty period. Failure to do so will terminate Customer’s warranty rights.
6.3. With respect to defects or non-compliances occurred during the warranty period and promptly notified to COBO, COBO shall repair or replace the defective Products or re-perform the non-compliant Services, within the shortest reasonable delay needed by COBO. Should COBO reasonably determine that said remedies are not feasible for technical or commercial reasons, COBO will refund Customer the price or prorated portion of the price paid by Customer for the defective or non-compliant Products or Services.
6.4. Customer shall return to COBO the Products to be repaired or replaced under warranty in accordance with COBO’s instructions and with COBO’s return material procedures. COBO may instruct Customer to scrap defective Products instead of returning them to COBO; said instruction shall be notified through an RMA (Return Material Authorization).
6.5. No Product warranty remedies shall apply in the following cases:
- damages caused by carrier during transportation;
- damages caused by Customer during installation;
- improper use of Products;
- non-compliance with COBO’s instructions on for functioning, maintenance and care and storage of Products;
- defects arising as a consequence of the combination of COBO’s Products with other products, devices or machinery not expressly authorized by COBO or included in the technical specifications of the Products;
- repairs or modifications made by Customer or by third parties, unless expressly authorized by COBO in writing;
- defects or malfunctions caused by adherence to technical specifications provided by Customer or to other requests by Customer.
6.6. In any case, COBO shall not be responsible for application of the Product on Customer’s vehicle, unless specifically agreed in writing by the Parties.
6.7. Notwithstanding the foregoing, mandatory provisions of law concerning product liability shall apply, to the limited extent provided by said mandatory laws.
6.8. This Section 6 governs the warranties provided by COBO and the corresponding rights of Customer. COBO disclaims and expressly excludes any and all other remedies, whether in contract or in tort including damages, as well as any other express or implied warranties, including but not limited to warranties of merchantability, uninterrupted use and – except as expressly provided in the technical specifications – the warranties of satisfactory quality, fitness for particular uses or certifications and warranties that may be arising from laws and regulations other than those expressly mentioned in these GTCS as applicable.
7. Intellectual Property Rights
7.1. Except as may be otherwise agreed in writing with respect to Products or Services designed exclusively for Customer, any and all Intellectual Property Rights in and to the Products and Services are and will be owned by COBO and/or to COBO’s licensors, if any.
7.2. The sale of Products and Services does not imply any transfer or assignment to Customer of any Intellectual Property Rights of COBO or of third parties, except that Customer shall be entitled to use, as agreed the Products and Services fully paid by Customer.
7.3. The price of Products and Services, when fully paid by Customer within the due dates, includes the grant of a limited license for the use of Products and Services.
7.4. Customer undertakes not to challenge the validity of the Intellectual Property Rights on the Products and Services sold by COBO.
7.5. COBO is the exclusive owner of the Trade marks. Customer undertakes to:
- refrain from using the Trade marks except with the prior authorization of COBO and complying in full with the instructions, conditions and limitations of use provided by COBO;
- refrain from publishing, using and registering trademarks and other distinctive signs which are counterfeit or may create a risk of confusion with the Trade marks.
7.6. In the event of a proven infringement of third party Intellectual Property Rights, COBO, at its sole discretion, shall (a) modify or replace the infringing Products and/or Services so to avoid the infringement, or (b) procure for Customer, at COBO’s expense, the right to use the relevant Products or Services or, if said remedies are not technically or commercially feasible, (c) refund to Customer the price or prorated portion of price paid for the Products and/or Services that cannot be used by Customer due to the infringement.
7.7. In order to be entitled to the remedies set out in sub-Section 7.6 above, Customer shall immediately (a) notify COBO in writing of any claim or infringement of which the Customer becomes aware, and (b) cease using the relevant Products and/or Services, and (c) leave to COBO the defense of the case (including any possible settlement) and (d) cooperate with COBO providing all information and data for the defense of the case.
7.8. The remedies set out in sub-Section 7.6 above shall not apply and COBO shall not have any indemnification obligations with respect to infringements of third party Intellectual Property Rights caused by (a) Customer’s unauthorized uses of Products and/or Services; or (b) modifications, repairs, combinations with other products, devices, machinery or technologies not made by COBO; or (c) continued use by Customer of Products and/or Services after notice of the alleged claim of infringement; or (d) failure to apply updates or changes provided by COBO to Customer; or € adherence to technical specifications or other data, information or requests provided by Customer. In such events, Customer shall hold harmless and indemnify COBO from and against any and all damages, losses and liabilities.
8.1. Customer acknowledges that, during the commercial relationship, COBO may disclose to Customer some Confidential Information. Customer undertakes (a) to treat and protect any Confidential Information with the same care that it uses to protect its information and, in any event, with no less than a reasonable degree of care having regard to the nature of Confidential Information; (b) to limit its use of any Confidential Information to the sole purposes of the purchase and authorized use of Products and Services; (c) to refrain from any other use of the Confidential Information without COBO’s prior written consent; and (d) not to disclose the Confidential Information to any third party unless with COBO’s prior written consent and subject to confidentiality undertakings.
8.2. The confidentiality and non-use provisions set forth in sub-Section 8.1 above shall survive for a period of five (5) years from the date of first disclosure of each Confidential Information. The Parties may agree upon longer confidentiality periods for specific Confidential Information.
9. Limitations of liabilities
9.1. Products and Services are not designed for military, medical or aeronautical use and other fields subject to pecific safety rules or where the failure of a Product can cause death or serious injury. COBO does not authorize the use of Products and Services in said fields which, if made, shall be deemed under the sole responsibility and liability of Customer, which shall assume all relevant risks, with full disclaimer and exclusion of any and all warranties and liabilities upon COBO.
9.2. Except in case of willful acting or gross negligence, in no event COBO may be held liable for indirect or unforeseeable damages, including but not limited to loss of profits, loss of goodwill, loss of business reputation, product recall campaigns, costs of dismounting, replacement and mounting, etc., independently of the fact that causes said damages.
9.3. COBO’s maximum aggregate liability shall in no event and for no reason exceed the value of the Order under which the liability has arisen.
9.4. In addition, COBO will never be held liable for damages or breaches arising from a force majeure event, including but not limited to acts of God (earthquakes, hurricanes, floods, eruptions, etc.), acts of terrorism, acts of war, disorders, strikes, governmental sanctions (embargoes, etc.), changes in the applicable laws, unavailability of permits or authorizations not under COBO’s control, etc..
In the event that at force majeure event continues for more than ninety (90) days without foreseeable solutions, each of the Parties shall be entitled to terminate the agreement without liability.
10. Applicable law and jurisdiction
10.1. These GTCS and the purchases and sales of Products and Services shall be governed by and interpreted in accordance with the laws of the Republic of Italy, with exclusion of their choice-of-law provisions.
The provisions of the 1980 Vienna Convention on the International Sale of Goods shall not apply.
10.2. Any and all disputes between the Parties arising under or in connection with these GTCS and/or the sale and purchase of Products and Services shall be subject to the jurisdiction of the Italian courts and the venue of the courts in Brescia, Italy, with exclusion of any other jurisdiction and venue.
11.1. In the event of conflicts among the provisions of the various contractual documents in force between the Parties, the following (descending) order of precedence will apply (except as provided in sub-Section 8 with respect to Confidential Information):
(i) frame supply agreement between the Parties, if any;
(ii) other specific agreements between the Parties validly executed by COBO;
(iii) these GTCS;
(iv) any other document executed by the Parties;
(v) the provisions of the Italian Civil Code
11.2. Any change or addition to these GTCS shell be made in writing.
11.3. Customer shall promptly notify COBO of any change in Customer's phone number or e-mail address, in order to ensure receipt of automatic notifications from COBO’s Telematics System and to allow contracts by COBO’s support service.
11.4. In the event that any clause of these GTCS is, becomes or is declared invalid, unenforceable or void, these GTCS shall remain in full force and effect to the fullest extent allowed by law without said clause, which shall be deemed automatically amended or replaced in a way that validly includes the substantial content of the clause and that realizes to the maximum possible extent the Parties' intentions.
11.5. In case of conflict between the Italian and the English version of this document, only the Italian version shall apply and the English version shall be deemed as courtesy translation only.
In accordance with Articles 1341 and 1342 of the Italian Civil Code, the Customer hereby declares to have read and understood and to expressly and specifically approve the following clauses: 3 (Ordering Procedure); 4 (Deliveries); 5 (Prices, invoicing and payments); 6 (Warranties); 7 (Intellectual Property Rights); 9 (Limitation of liabilities); 10 (Applicable law and jurisdiction);